Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, January 29, 2008

6th Holds That Employee Who Falsely Signed Another Employee's Name On A Letter Engaged In Unprotected Activity

6thcir UAW v. NLRB, ___F.3d___(6th Cir. Jan. 28, 2008), illustrates just how narrow the protections of Section 7 are. Section 7, of course,  protects the rights of employees to engage in concerted activity for mutual aid and protection. However, that right is not absolute. Egregious employee conduct can render the employee unfit for service. Usually, that involves violence, employee disloyalty or product disparagement.

In UAW, however, this exception has been expanded to encompass a "deliberate falsity and activity that could "destroy the reputation and end the employment of another employee." In this case, an employee, a union supporter, sent a letter criticizing a supervisor at Ogihara America Corporation by falsely indicating that it was sent by another employee who happened not to be a union supporter. The false designation was on the package, not in the letter.   

The employer's actions demonstrate their motives. A local Kinko's had a security tape of the employee filling out the FedEx label, but would not release it without a subpoena. The employer had to spend a great deal of time tracking that down, but it did not stop there. Ogihara American Corp., the employer, then filed a defamation action in state court and subpoena's the tape. The opinion implies that the purpose of  that lawsuit was to get the subpoena. Actually, the employer only supported the lawsuit filed on behalf of the employee whose name was falsely included on the package.

Why did the employer go through the time and expense of doing this?? Though this answer is obvious, the court did not address it. It suspected the union supporter sent the package falsely and this was a way for the employer to undermine the union. Congratulations Ogihara America Corporation you won round one! However, in the long run Ogihara American Corporation, you may find it more useful to view your employees as partners-not adversaries.

Mitchell H. Rubinstein

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A more appropriate question would be, why did the UAW spend its hard-working members' money defending a fraudulent act under the auspices of concerted activity.

The actor's concerted activity protection justifiably ended when fraud was committed.

And unionists wonder why employers hate unions?

It's because unions have become too known for protecting inane mediocrity, for living by the credo "the ends always justify the means," and for protecting the wicked at the expense of the righteous.

It should, therefore, come as no surprise when capital takes flight, jobs leave the country, and machines replace men.

Oh, by the way, before you respond with the typical diatribe of this being "anti-union," you should know that I came from the ranks of those who protected inane mediocrity, lived by the credo "the ends always justify the means," and protected the wicked at the expense of the righteous....And it took very little time to realize why our jobs were shipped out of country.

We were the means to our own end. And in 2009, EFCA will help finish the job.

Posted by: | Feb 1, 2008 5:58:18 PM

I hope we can at least agree that there are bad unions and bad employers. However, how many "bad" unions are there as compared with employers? Employers spend millions to fight unions. Why? Because of their own greed. If more employers would view their employees as partners and has humans, just like them, we would all be better off. Until then, yes we need unions.
Mitch Rubinstein

Posted by: Mitchell Rubinstein | Feb 1, 2008 7:27:03 PM

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